2002 PLP 1167 (YLR)

4. The prosecution in support of its case examined 16 witnesses. Ahmad Khan complainant was not examined as a witness. Out of the said witnesses, Dr. Sher Ali P.W.13 conducted the post‑mortem examination of Javed Iqbal deceased and noted the following injuries:‑ (i) A grazing wound skin deep of fire arm just above the right eyebrow. (ii) A grazing wound of fire‑arm 2 c.m. above right eyebrow, 1 c.m. right from midline. (iii) A fire‑arm wound on the right chin 2 c.m. from the midline. (iv) A fire‑arm wound 2 c.m. x 1 c.m. on the left ear. (v) A fire‑arm wound 1 c.m. x 1 c.m. edges burnt on the front of right medial to nipple and 4 c.m. lateral from the midline. (vi) A fire‑arm wound 1.5 c.m. x 1 c.m. medial to injury No.5 edges were burnt. The injuries were ante mortem, had been caused with fire‑arm and were sufficient to cause death .in ordinary course of nature.

5. P.W.11 Mehr Khan furnished the eye‑witnesses account, according to which on 19‑7‑1996 at 9/10‑00 p.m. they reached near the house of Mehr Khan father of Javed Iqbal accused where electric bulb was on and they saw that Javed Iqbal deceased was holding Mst. Jannat Khatun accused from her arms who was the sister of Javed Iqbal convict appellant and he (Javed Iqbal convict appellant) was trying to free her from Javed Iqbal son of Ahmad Khan but Javed Iqbal deceased remarked that either he should pay the money or he will take away Mst. Jannat Khatun, whereupon, Javed Iqbal convict appellant brought a pistol and fired a shot aiming at Javed Iqbal deceased. Then Javed Iqbal convict appellant also fired pistol shots hitting various Parts of body of the deceased.

6. Apart from this witness, P.W.10 Muhammad Iqbal deposed to the effect that on 7‑8‑1996 he was present in his house at evening time when Javed Iqbal appellant came there and told him that Javed Iqbal deceased was demanding the hand of Mst. Jannat his sister but he was not agreeing to the same, rather he stopped Javed Iqbal deceased from visiting their house, thereafter, a quarrel ensued in between Javed Iqbal appellant and Javed Iqbal deceased. On receipt of fire shot at the hands of Javed Iqbal accused appellant, Javed Iqbal son of Ahmad Khan died.

7. P.W.8 Moula Bakhsh is a witness of recovery of .30 bore pistol P.8 from the kitchen in the house of the appellant which was taken into possession vide memo. Exh.P.D. Similarly, P.W.7 Mehboob Elahi also joined the investigation and on 20‑8‑1996 Mst. Jawaran Khatun got recovered pistol P.5 alongwith five live bullets P.6/1‑5 from the box lying there which were secured into possession vide memo. Exh.P.C. This in all is the incriminating evidence produced by the prosecution, the remaining witnesses are all formal in nature.

8. The learned counsel for the appellant appointed at State expense has argued that initially the F.I.R. was recorded on 20‑7‑1996 at the instance of Ahmad Khan complainant who named three different persons as accused but subsequently on 6‑8‑1996 i.e. after expiry of about eighteen days, new version came before the Investigating Officer wherein P.W.11 Mehr Khan and P.W.10 Muhammad Iqbal were examined as main witnesses who incriminated the present appellant alongwith three acquitted co‑accused. According to the learned counsel the present version came before the police quite belatedly, therefore, same should not be relied upon. Further submits that eye‑witness account as furnished by P.W.11 and P.W.10 i.e. Mehr Khan and Muhammad Iqbal is materially different and discrepant, therefore, no safe reliance can be placed on the testimony of either of the two. The argument by the learned counsel in the first instant appear to have quite some force but when both the statements are analyzed and re‑examined critically, it transpires that both of the eye‑witnesses have practically made similar statements. According to Mehr Khan P. W.11 Javed deceased was done to death because he was forcibly dragging Mst. Jannat Khatun sister of the appellant. In the same manner, the statement of extra‑judicial confession made by the appellant before Muhammad Iqbal P.W.10 also revolves around the same incident that the deceased wanted to have hand of Mst. Jannat Khatun to which he was not agreeable and the appellant was driven by circumstances to commit his murder. It is true that statements of both the witnesses were recorded quite some time before the occurrence but the fact remains that neither of the two have any ill‑will or any other motive to falsely implicate the accused appellant. Assessing and evaluating the intrinsic value of their statements, especially that of Muhammad Iqbal P.W.10, it is found that he has come forward with true story. Had there been any intention or mala fide to falsely implicate the appellant, he would not have stated with regard to the conduct of the deceased that he was forcibly dragging Mst. Jannat sister of the appellant. It appears that murder was committed in the house of appellant and the story narrated by these witnesses touching the incident is true and appeals to reason. Statements of this witness Le Muhammad Iqbal P.W.10 taken up alongwith the statement of Mehr Khan P.W.11 coupled with the fact of recovery of pistol and supported by the medical evidence, it is found that the incident took place in the manner as described by Muhammad Iqbal P.W.10. The learned trial Judge therefore, by taking into consideration‑ after appraising the evidence of this witness, came to the conclusion that the deceased was having illicit relations with unmarried sister of the appellant and that another factor which was brought to light during investigation as well as in the evidence was that murder was committed out of provocation meted out to the appellant, therefore, conviction was recorded under section 302‑C, P.P.C. As far as conviction under section 302‑C, P.P.C. is concerned, that is quite justified and unexceptionable.

9. With regard to sentence of fourteen years' R.I. the learned trial Judge has awarded the sentence which appears to be rather excessive. Viewed with the back ground that deceased came to the house of the appellant, forcibly caught hold of arm of appellant's sister and thereafter, tried to drag her away forcibly, the same would have naturally provoked the appellant immensely and he by loosing self‑control was driven to commit his murder under an unbearable obsession. In this back‑ground the sentence of five years' R.I. under section 302‑C, P.P.C. seems to be fair and appropriate.

10. Accordingly, while maintaining, the conviction of the accused appellant under section 302‑C, P.P.C, his sentence of fourteen years R.I. is reduced to five years R.I. Benefit under section 382‑B, Cr.P.C. is extended. N.H.Q./J‑48/L Sentence reduced.